Midterm Elections Generate Rush of Immigration Measures

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Midterm Elections Generate Rush of Immigration Measures

October 15, 2010

Policy Beat

By

Muzaffar Chishti, Claire Bergeron

Students from across the country took part in a mock graduation ceremony in Washington last year to show their support for the DREAM Act.

With the midterm elections looming and Congress about to adjourn, influential senators on both sides of the aisle introduced immigration and national security bills in September, prompting widespread speculation about the deeper political calculations underlying the measures.

Senate Majority Leader Harry Reid (D-NV) kicked things off by announcing September 14 that he would attach the Development, Relief, and Education for Alien Minors (DREAM) Act as an amendment to the Department of Defense (DOD) appropriations bill. Appropriations bills are often must-pass measures that provide a vehicle for legislation that is otherwise difficult to enact.

The DREAM Act, which saw major support from immigrant advocates and student groups this year, would create a pathway to legal status for certain unauthorized immigrant youths who arrived in the United States before age 16 and who have completed some higher education or served in the military.

Seven days later, the Senate narrowly failed to defeat a Republican move to filibuster attaching the DREAM Act in the defense bill. The vote happened after the Republican caucus took a position against including DREAM in the DOD bill. All the Republication senators who previously backed the DREAM Act supported the caucus position.

The Senate floor vote split almost entirely along party lines. However, both Democratic senators from Arkansas voted with the Republican caucus to block the measure.

Although the vote halted any immediate prospects for passage of the DREAM Act, Senator Richard Durbin (D-IL), a long-time proponent and lead sponsor of the legislation, quickly reintroduced the DREAM Act as a stand-alone bill on September 22.

Many immigrant advocates lauded Reid's decision to push for the DREAM Act before the 111th Congress closed. In hopes of enactment this year, student leaders mobilized rallies and sponsored demonstrations in cities from Tucson, Arizona, and Miami, Florida, to Lincoln, Nebraska. They also staged sit-ins at the offices of several key U.S. senators, including John McCain (R-AZ), Dianne Feinstein (D-CA), and Charles Schumer (D-NY).

In July, student advocates hosted a DREAM Act march in Washington that culminated in a "graduation ceremony" in which student marchers publicly disclosed their unauthorized status.

Proponents of the DREAM Act also secured support from more than 100 college and university presidents and dozens of national academic organizations, including the College Board and the American Council on Education. Education Secretary Arne Duncan and Defense Secretary Robert Gates have also endorsed the measure.

DREAM Act opponents strongly criticized Reid's decision to include the DREAM Act in the DOD bill as a ploy aimed at rallying Latino voter support in Nevada, where Reid faces a tough battle for reelection.

During the Senate floor debate on the DREAM Act, McCain accused Reid of succumbing to election-year politics, stating that he was using the bill "to galvanize his political base as far as the Hispanic community is concerned."

On September 29, Senators Robert Menendez (D-NJ) and Patrick Leahy (D-VT) introduced a comprehensive immigration reform bill that included a legalization provision.

The Leahy-Menendez bill, a companion measure to a 2009 bill introduced in the House, is the first comprehensive immigration reform measure to be introduced in the Senate since 2007. The bill surprised many since Schumer, the chairman of the Senate's immigration subcommittee, has been working for more than a year on a bipartisan immigration reform bill and previously released a blueprint of the bill coauthored with Republican Senator Lindsey Graham (R-SC).

As Menendez is not up for reelection this year and polls show Leahy leading his Republican opponent by a wide margin, their bill did not draw the same level of criticism as Reid's pursuit of the DREAM Act. Nonetheless, some analysts say the Leahy-Menendez bill may be part of an effort to sway Latino voters, who played a pivotal role in the Democrats' electoral successes in 2008.

In fact, recent poll results released by the Pew Hispanic Center indicate that while two-thirds of Latino voters say they would choose a Democratic candidate over a Republican in the 2010 election, the percentage of Latinos who say that they are "absolutely certain" they will vote this year is dramatically lower than in 2008, and significantly lower than the percentage of the general population that plans to vote in November. Mobilizing the Latino vote is thus seen as critical for Democratic success in the mid-term elections.

Actions on the Republican Side

Senator Orrin Hatch (R-UT), who is not up for reelection this year, introduced a new immigration enforcement bill on September 29.

The bill would require eligible states, counties, and cities to enroll in the Secure Communities or 287(g) federal immigration enforcement programs, and would limit the amount of federal money that could be used to reimburse states for providing health care to immigrant children under the Children's Health Insurance Program (CHIP).

In introducing the new measure, Hatch emphasized that he had crafted the new bill in response to local concerns that Congress had not done enough to stop unauthorized immigration.

Republican candidates in several key races have invoked the immigration issue in order to question their opponents' commitments to enhancing border security and immigration enforcement.

In Nevada, Republican Senate candidate Sharron Angle introduced a campaign ad in September that labeled Reid as "the best friend an illegal alien ever had."

Many other Republican candidates running for office in Arizona and elsewhere have emphasized their support for Arizona law SB 1070, a controversial immigration enforcement measure enacted last April. Of the 37 gubernatorial races this year, more than 20 include candidates who have publicly declared their support for SB 1070-type laws in their own states.

Republican candidates in California, Colorado, and Kansas have also sought endorsements from Sheriff Joe Arpaio of Maricopa County, Arizona, who has been highly visible in taking a tough stance against unauthorized immigrants.

What Could Happen after the November Elections

With Congress having adjourned so members can campaign in their districts, the recently introduced immigration bills cannot be enacted before the midterm elections. However, some have speculated their having been introduced tees them up for consideration during the "lame duck" congressional session that will follow the midterm elections.

Proponents of the DREAM Act and the new comprehensive immigration reform bill point out that important immigration legislation, such as the 2000 Legal Immigration Family Equity (LIFE) Act, previously passed during lame-duck sessions, when outgoing elected officials appeared more willing to take up controversial legislation.

Days after the Senate vote that derailed the DREAM Act, several of its strongest supporters, including Congressman Luis Gutierrez (D-IL), voiced optimism over the bill's chances during the postelection session.

Speaking on the television network Univision, Menendez also raised the prospect of passing immigration reform during the lame-duck session, noting that after the elections, senators would be more likely to vote "without political considerations."

Officials Suggest Local Governments Cannot Opt out of Secure Communities Program

Local jurisdictions may not be able to opt out of a federal immigration enforcement program according to recent statements from top officials at the Department of Homeland Security (DHS).

Homeland Security Secretary Janet Napolitano told reporters on October 6 that while DHS was willing to work with state and local governments on the timing and implementation of Secure Communities, the program was not viewed as an "opt-in/opt-out" program.

John Morton, director of Immigration and Customs Enforcement (ICE), the agency in charge of Secure Communities, confirmed Napolitano's statement two days later, saying it would be difficult for localities to remove themselves from the program if their states chose to participate in it.

Launched in 2008, Secure Communities checks the immigration status of detainees at state and local jails by running their fingerprints against various immigration and criminal databases. If a check reveals a detainee is an unauthorized immigrant or a legal immigrant who may be removable, the program automatically notifies ICE, which may initiate removal proceedings against the person.

DHS officials have called the program "a major part" of the agency's success in removing a record number of immigrants with criminal convictions during fiscal year (FY) 2010, which ended September 30.

An ICE fact sheet on the program issued in September, as well as a letter from Napolitano to Congresswoman Zoe Lofgren (D-CA), chair of the House immigration subcommittee, seemed to indicate that local jurisdictions could opt out of Secure Communities. The more recent statements, however, call this assumption into question.

Some states and localities are concerned that Secure Communities may strain relationships between the police and immigrants. Officials in Arlington, Virginia; Washington, DC; and Santa Clara and San Francisco, California, have voted to "opt out" of the program.

Two Immigration Cases for Supreme Court. The U.S. Supreme Court will hear oral arguments in two immigration-related cases during its fall term. Chamber of Commerce v. Whiting deals with the controversial 2007 Legal Arizona Workers Act, which allows the state to suspend or revoke the business licenses of employers found to have hired unauthorized immigrants. Flores-Villar v. United States considers the constitutionality of a provision of the Immigration and Nationality Act (INA) that allows certain children born abroad to a U.S.-citizen parent to acquire U.S. citizenship at the time of their birth, and lays out more restrictive requirements for children born abroad to U.S.-citizen fathers than those born to U.S.-citizen mothers.

Read more about the Supreme Court's decision to review the Legal Arizona Workers Act in the July 2010 Policy Beat.

Record Number of ICE Removals. DHS removed 392,862 people during FY 2010, a new record and roughly 3,000 more people than were removed in FY 2009 (389,834). Of those removed in FY 2010, half (195,000) had criminal convictions, also a record number. Only 35 percent of those removed in FY 2009 (136,343) had criminal convictions.

New Ruling in Arizona Legal Challenge. A lawsuit filed by a coalition of immigrant advocacy and civil liberties groups challenging Arizona law SB 1070 should be allowed to go forward, U.S. District Court Judge Susan Bolton has ruled. In her first major decision in Friendly House v. Whiting, Bolton denied the defendants' motions to dismiss the plaintiffs' civil rights and First Amendment claims that SB 1070 would lead to racial profiling. The ruling comes roughly three months after Bolton temporarily blocked key parts of SB 1070 in a separate lawsuit the federal government brought against Arizona.

H-1B and L-1 Visa Application Fee Increases Take Effect. Employers who have more than 50 workers in the United States — and at least 50 percent of whom are high-skilled H-1B and L-1 visa holders — are now required to pay supplemental fees for new H-1B and L-1 applications of $2000 and $2,250, respectively. The fees, part of a border security law passed in August, are expected to mainly affect Indian IT firms with U.S. operations. The H-1B visa program allows U.S. employers to sponsor high-skilled immigrants for temporary employment; the L-1 program permits companies to sponsor intracompany transferees.

U.S. Entry for 36 Cuban Dissidents. Thirty-six Cuban political dissidents currently residing in Spain will be allowed to reunite with their family members in the United States thanks to cooperation between the State Department and DHS. U.S. immigration policy generally prohibits individuals from seeking refuge in the United States after they have received protection in a third country. The dissidents will be admitted under a law that allows for the parole (or entry) of individuals whose admission to the United States advances a "significant public benefit."

English Language Learners in Arizona. The U.S. Department of Education (DOE) has found that two practices the Arizona Department of Education uses to classify "English language learners" (ELLs) violate federal law. DOE said a state survey that identifies ELL students, as well as the test it uses to reclassify ELL students as English proficient, discriminate against ELL students and violate Title VI of the 1964 Civil Rights Act. In a related development, DOE has also begun investigating claims of discrimination against teachers in Arizona who are nonnative English speakers.

Read the letter from DOE's Office of Civil Rights on the two Arizona policies.

Cities Considering Voting Rights for LPRs. Voters in San Francisco, California; Portland, Maine; and Brookline, Massachusetts, will decide in November whether lawful permanent residents (LPRs) in their communities should be permitted to vote in local elections. Proponents maintain that allowing LPRs to vote will enhance their participation in local communities. Critics argue that voting is a privilege reserved for U.S. citizens. The San Francisco and Portland measures will both appear as ballot initiatives in November; the Brookline measure will be put to a vote during a November town meeting.

Rental Ordinance in Summerville, South Carolina. The town council in Summerville, South Carolina, has rejected an ordinance that would have prohibited landlords from renting housing to unauthorized immigrants, citing concerns over the potential legal costs of defending such a measure. The ordinance —which mirrored similar measures enacted in Farmers Branch, Texas; Hazleton, Pennsylvania; and Fremont, Nebraska — would have required all prospective tenants in Summerville to obtain a rental license from the city. The Hazleton ordinance was recently found unconstitutional, and the Farmers Branch and Fremont ordinances have been challenged on the same grounds in federal court.

Visit the MPI Data Hub for the latest stats on immigrants in South Carolina.

New York Decision on Pharmacists' Licenses for Immigrants. A New York state law prohibiting individuals who are not U.S. citizens or LPRs from applying for state pharmacist licenses violates the equal protection clause of the U.S. Constitution, a federal judge has ruled. The lawsuit's 26 plaintiffs are all lawfully present in the United States on temporary visas. Many of them are applying for permanent residence but face processing delays of several years. The court permanently enjoined the licensing law from taking effect, pending the outcome of further litigation.

Visit the MPI Data Hub for the latest stats on immigrants in New York.

Pardon Review Process in New York. Immigrants in New York facing deportation as a result of a criminal conviction may seek a pardon from the governor's office under a new procedure. A state pardon panel of executive chamber and state agency officials will review and then recommend cases to the governor for favorable consideration. Governor David Patterson announced the plans for such a panel last spring, after he formally pardoned Qing Hong Wu, a 29-year-old permanent resident facing deportation for crimes he committed as a teenager. Governors' pardons are frequently the only remedy for legal immigrants facing deportation based on prior criminal convictions.